Patrick Kane Wins Again

rapeculture

Just a few convenient days after his election as Supreme Court Justice, outgoing DIstrict Attorney Frank Sedita issued an unusual statement explaining that his office was not going to prosecute Patrick Kane for allegedly raping a young woman in August. The case has been plagued from the very beginning by strategic leaks of information seemingly from people with something to promote or defend. The vast majority of these leaks seemed to assail the alleged victim, accusing her of being a liar or a gold-digger or that there was a lack of forensic evidence to corroborate the allegation. The best that the alleged victim’s friends could do was leak to the News that she’s a really good person.

To recap: the first article I published explained why club owner Mark Croce engaged in blatant slut-shaming to the Buffalo News. I followed that up with a Kane case FAQ, and a further analysis of the victim blaming that was taking place in the press from literally the moment this news hit. Kane had an off-duty cop on his payroll, and he also told the News tales about the alleged victim and Kane supporters took that all at face value. Paul Cambria argued with me about the case on Facebook, and that made a bit of news, the leak about a lack of DNA evidence happened, and then the alleged victim’s mother attempted to perpetrate a fraud on her daughter’s lawyer, the public, and the system with an evidence bag. District Attorney Sedita held a dramatic press conference where he quite clearly expressed his personal prejudices about the case, indicating that a prosecution was going to be unlikely and explaining that he had exchanged exculpatory Brady material with the popular and wealthy alleged perpetrator’s legal team during the investigatory stage – something unprecedented, according to criminal lawyers with whom I spoke.

Over the course of this past week, we learned that the alleged victim was no longer going to cooperate with this District Attorney’s office, citing the “stress” of this investigation, and the case was ended two days after election day.

Here are some points to consider:

1. Kane isn’t “innocent”: Nothing’s Changed

He’s not even “not guilty”. Despite Mr. Sedita going miles out of his way to cast aspersions on the alleged victim and protecting the alleged perpetrator, no one knows what, if anything, happened between Kane and the alleged victim that night in August. One thing is for sure, because the alleged victim won’t cooperate, we’re unlikely to find out in a court of law what happened. I heard several male commentators take to the air over the last few days, including half of “Cellino & Barnes”, explaining that even a civil lawsuit was unlikely.

There was no trial—no jury, no nothing—to determine Kane’s guilt of lack of guilt. I haven’t seen anywhere that the alleged victim had recanted.

Sedita’s statement about what he characterized as, “this so-called ‘case’” added that it was, “rife with reasonable doubt.” But that’s not the standard at this stage – the D.A. was assembling evidence to present to a grand jury, which would be tasked with determining whether there exists probable cause that a crime occurred. Reasonable doubt is a job not even for the grand jury, but the trial jury. Sedita seems to have skipped all of those steps for one of two reasons; 1. he doesn’t believe the alleged victim and doesn’t want to trouble Kane with this anymore; and/or, 2. His office is notorious for being selective about prosecuting high-profile cases only where there exists a strong likelihood of success.

As a disinterested observer of this entire case, my impression was that the D.A.’s office was more interested in protecting the alleged perpetrator than the alleged victim; more worried about the hockey star’s reputation than whether something wrong may have happened one August night. I’m not saying that’s what happened—only that it is the impression that they left. 

2. Sedita’s Statement Raises More Questions than it Answers

I can’t recall another case of any sort where the D.A. so openly vocalized his sympathy with an accused, where law enforcement bent so far over backwards for an accused. Well, at least not since Antoine Garner allegedly murdered then stuffed Amanda Wienckowski in a garbage tote. Sedita told us that the, “physical and forensic evidence … tend to contradict the complainant’s claims.” Well, why have trials if we can just ask the District Attorney to find facts and assess credibility for us? You can see the entire statement and the News‘ reporting here. It sounds like a report of a trial that never took place; that took place only within the District Attorney’s office. The details that Sedita revealed raised more questions than they answered.

“The physical evidence and the forensic evidence, when viewed in tandem, tend to contradict the complainant’s claim that she was raped on Kane’s bed,” Sedita’s statement said.

Could she have been wrong? Whatever happened—could it have taken place in someone else’s bed? Room? On a couch? This was her first time in Kane’s house.

Sedita wrote that Kane “exercised his constitutional right to remain silent.” Sedita also wrote that Kane made “no known incriminating statements to any civilian.” Sedita also said Kane didn’t engage in “any conduct consistent with a consciousness of guilt.”

He was represented and advised by a competent and experienced criminal lawyer who, according to a radio interview this week, specifically advised him to conduct himself normally.

The DNA results “lend no corroboration whatsoever to the complainant’s claim of penetration.”

Perhaps there was no completion. Perhaps there was a condom. Perhaps it was a lesser included offense.  “Kane’s DNA was found under her fingernails and on her shoulders where there were bite marks.”

All of these factual inconsistencies exist in any case—large or small—and that’s why we have prosecutions and trials and arrests and presentments to grand juries.

3. A Big Win for Rape Culture

We’re already seeing articles explaining how Patrick Kane can rebuild his prior reputation of being a stumbling drunk who punches out cab drivers over pennies in change. Not satisfied with an end to the prosecution, Cambria made sure to mock the young accuser, “[s]tress and strain? Every week, my office would get pictures sent to us of this young woman at parties and social occasions, living it up…I do not believe she was suffering stress and strain.” Did Cambria produce these pictures to the News? Did the News follow up on that? Then why print it? Cambria is being paid to represent a client, he makes a statement accusing a young woman of having a social life, and the News prints it, verbatim, without even checking to see if it’s true. James Brown was right: This is a man’s world.

As all the Kane fans take to social media and condemn Kane’s accuser for being a gold-digging whore who should be sued—or worse—I have no doubt that something happened on August 2nd at Kane’s house that deeply troubled the alleged victim to the point where she accused Kane of rape. It might not have risen to the level of rape—she’s not a lawyer—but there exists absolutely no evidence that she was just out for a big payday, or that she concocted this entire story out of whole cloth as part of a grand scheme to extort money. The young college graduate and former cheerleader probably doesn’t need the grief that’s ensued.

Kane wins, and gets to carry on with his life, at least until the next drunken escapade or assault. The criminal justice system is the real victim here—it’s exceedingly difficult to prove and prosecute rape cases, and this entire freakshow hasn’t made it any easier. It hasn’t given women any assurance that they’ll be treated with respect or fairness if they accuse a powerful and influential man of an assault. It certainly didn’t do any favors for the victims of rape and sexual assault, or the people who make their lives helping them. It hasn’t done a stitch of good in terms of battling back against the rape culture pervasive not just in the fraternity of sports, but in our society overall.

Powerful males in law, law enforcement, Buffalo’s bar scene, and media pulled out all the stops to protect Kane and make the accuser’s life a living hell. The odds were stacked against her from the moment she called the cops in August. The leaks to the media—almost all of which were antagonistic to the accuser—were well-coordinated and devastating. The reaction on social media that I’ve seen is troubling. Quite honestly, from what I can tell, the truth and justice never had a chance.

Patrick Kane Case: The Morning After

cambria

The dust is still settling from a shocking, raucous week for the Patrick Kane rape case. Let’s consider what’s left of it.

Last Sunday, the Buffalo News published information obtained through anonyms about the results of DNA testing done on the alleged victim. It was reportedly negative for Patrick Kane’s DNA, at least below the waist. This information is exculpatory for Kane, but not definitively so.

By Wednesday, the alleged victim’s attorney, Thomas Eoannou, held a blockbuster press conference to accuse someone of tampering with evidence, having left what Eoannou called the “rape kit bag” on the mother’s doorstep. But within minutes, all the relevant law enforcement agencies had denied that there was any irregularity in the chain of evidentiary custody. Something fishy was going on. Thursday morning, I wrote this:

Eoannou’s bag almost certainly at one point contained some piece of evidence that was obtained at ECMC on the morning the rape kit was administered. It’s feasible, for instance, that an item was stored in there but the police took it away in a different bag. What’s clear is that everyone with no stake in the outcome of the underlying rape case agrees that the rape kit hasn’t been tampered with.

By Thursday night, Eoannou had fired the complainant and her mother as his clients, and held an extraordinary press conference recanting practically everything he had said the day before. An embarrasing spectacle had been exponentially grown into a circus. Anyone’s best guess is that the mother concocted the hoax in an effort to cast doubt on the forensic evidence – an effort that would have been substantively pointless. After all, its exculpatory effect helps Kane’s defense, but so would any manufactured, phony doubt cast upon the reliability of that DNA data; the result is the same.

On Friday, District Attorney Frank Sedita held his own press conference. Clearly, Sedita was incensed by the complainant’s former legal advisor, Thomas Eoannou’s accusations about a brown paper bag; accusations that were quickly determined to be false. For a shocking period of just over 24 hours, Erie County’s law enforcement agencies were falsely made to look like bumbling incompetents. Sedita was there to set the record straight.

The press conference had all the hallmarks of a closing argument to a jury. There was a concise and persuasive PowerPoint presentation to go along with Sedita’s dramatic and emotional statements. I think that the press conference itself went on for about 30 minutes longer than necessary, and that perhaps Sedita took too many liberties in discussing the case during his Q and A. The DA now discloses exculpatory Brady material to the parties during the investigation stage – before criminal action is commenced? Sedita needed to disclose that the complainant had retained civil legal counsel? He needed to emphasize that it wasn’t a question of “when”  but “if” the case is presented to a grand jury? Too long, and too much information.

Nevertheless, it quickly became clear that Sedita’s office has acted with utmost professionalism, and has not contributed in any palpable way to the unfortunate circus atmosphere surrounding the underlying case. They have behaved ethically and responsibly. Also, his office now finds itself chasing an extra, unnecessary inquiry: what did the complaining victim know about her mother’s brown paper bag hoax, and when did she know it?

What did we learn from D.A. Sedita? There was never a bag for the rape kit; the rape kit is sealed in a box, and taken to an evidence locker at central police services. He explained that the Eoannou’s brown paper bag was given to the alleged victim’s mother by a nurse at ECMC to hold an article of clothing that the complainant was wearing at the time of the supposed attack. The mother never used the bag; police took the clothing and placed it in their own evidence bag, and the mom held onto the hospital’s bag and took it home.

“What do we do with this new information?” Sedita said at the news conference. “Obviously, there’s been an effort to create a hoax. Obviously, there’s been an effort to manufacture a perception that forensic evidence cannot be trusted. I’ve got to figure out who was in on that, why they would do that and what it means for all of the other evidence. I will be doing that. We will be doing that over the course of the next few days.”

While I’ve argued that there exists no evidence at this stage to conclude that the alleged victim had any inkling of what mom was up to, others have pointed out that this is naive and stretches credulity. I prefer sworn testimony to anonymous allegations or declarations to the press, and I prefer proof to speculative conclusions. I take every media report about the case with a grain of salt. If the alleged victim is discovered to be incredible or a liar, how this case has been handled would likely dissuade future victims of sexual assult from coming forward. If you’ve seen on social media some of the visceral, homicidal hatred being slung the complainant’s way, you’d be appalled. Chicago reporter Julie DiCaro, who has reported fairly on this matter, couldn’t go to work on Friday thanks to death threats. Because hockey; because bro/rape culture.

After Sedita’s press conference, Patrick Kane’s lawyer, Paul Cambria, invited the media over to chat. He reiterated his belief that the bag hoax establishes conclusively that the entire thing is a fabrication, and there should not be any prosecution. Specifically,

That the actual accuser knew what that bag contained. That was a very, very important fact. If you know what it contains, you witness someone claiming that it contains something else and you know it’s introduced into the legal process and you know what the consequences can be. You’re ok with that, you’re ok with a fraud being perpetrated. I think that’s a very significant fact.

He argued that the mother could be subpoenaed to testify, in which case the hoax becomes fodder for cross-examination on the issue of credibility. Cambria said that she could have committed the crime of obstruction of governmental administration, and stated that Kane was the real victim. Cambria correctly stated that Eoannou could have saved himself a ton of embarrassment by simply going to the authorities with his concerns about the brown paper bag, rather than the media.

Tom Bauerle spent two afternoons on WBEN parroting Cambria. After his presser, Cambria was caught on a hot mic saying, “Tom [Eoannou] is a good lawyer, I can’t believe he got sucked into this.” True, that.

I have no idea whether there will be any prosecution, at this point. It depends a great deal on how law enforcement assess the credibility of the complaining victim. If she knew or acquiesced in her mother’s hoax with the bag from ECMC, this case is finished. Cambria argues that she had to know, but look again at Sedita’s statement – the mother never used the bag, so the “actual accuser” feasibly wouldn’t know what, if anything, it “contained”. In any event, no one knows whether the alleged victim is culpable for the hoax any more than I know the opposite to be true; if you say she’s a cheat or a liar, you bear the burden of proof on that point.

If there is no case to be had, I will wait for the District Attorney to tell me that. Before that happens, I’m assuming that everyone involved is a rational, thinking person who would not behave completely unreasonably. So far, the complainant’s mother has proven herself to be neither rational nor thinking. As for the complainant herself, I want her guilt regarding the bag hoax – to the extent it exists – to be proven. Don’t let’s jump to conclusions about her, just like we shouldn’t jump to conclusions about Kane himself.

Anyone notice how many people directly involved or commenting publicly about this whole thing are male? Oh, it’s a tough case for the prosecution now, says former Attorney General Dennis Vacco. The alleged victim had to know what mom was up to, says Kane’s attorney, Paul Cambria. The mom perpetrated a fraud so embarrassing, Eoannou held a press conference to destroy her forever, and fire her daughter as his client. Hell, here I am asking people to stop leaking information and rushing to conclusions – and I get grief about it. The few females I’ve seen actively pursuing this case are the aforementioned Julie DiCaro, whose life was threatened for daring to report objectively, occasionally, we hear from representatives from crisis services, and local attorney Florina Altshiler, who also seems to be the only person in any piece in which she’s quoted to basically urge caution and rationality from people. We need a lot more female lawyers and commentators involved with this case.

This case has been polluted by victim-shaming since day one. I think we could all benefit from hearing more women’s voices discussing this case in the mainstream media. We’re already giving Kane the benefit of the doubt by acknowledging that he remains not only not guilty of anything, but not even charged. We sit here instead contemplating what legal recourse Kane might have if absolved of wrongdoing.

Now, we wait some more, so that law enforcement can investigate an ancillary issue about a brown paper bag that never should have happened. No, this is not how these things typically go. 

Patrick Kane Case: Eoannou Quits

eoannouquits

Thursday night, in a hastily called, unusually late-night press conference, attorney Thomas Eoannou publicly withdrew as attorney for the complaining victim in the Patrick Kane rape case. Eoannou’s move came just a day after he held a different press conference, where a brown paper bag with a hospital label on it took center stage, as Eoannou alleged that it was evidence of some sort of epic evidence tampering.

As it turns out, and as we reported on Thursday morning, the bag represented nothing at all. Eoannou was duped, overreacted, or both. To hear him tell it, his investigation into how that bag came into his possession led him to believe that the alleged victim’s mother’s story about it was false. Because he had so publicly used that bag to accuse someone unnamed of sabotaging this case and tampering with its evidence, Eoannou looked ridiculous coming before the media a second time doing his best Emily Litella impression: never mind.

Except here, Eoannou’s client’s mother’s misinformation was such that he felt he could no longer represent them, and he fired them. Eoannou made it crystal clear that he didn’t blame the alleged victim herself, and that she had nothing to do with this.

What do we know? 

To circle back to the underlying rape investigation, these things are true:

1. Eoannou’s bag had nothing to do with the rape kit and is not evidence of tampering;

2. The alleged victim did not lie or make up some story to Eoannou about the bag – her mother evidently did;

3. None of this means that Patrick Kane did – or didn’t – rape the alleged victim;

4. The actual evidence remains safely tucked away at Central Police Services, unmolested and untainted, and from a prosecutorial standpoint, nothing is different as we wake up on Friday morning; and

5. Thomas Eoannou – who was, is, and remains one of the area’s elite criminal defense attorneys – had no official role in this case. For the underlying rape case, his withdrawal substantively represents absolutely nothing.

After all, the prosecution may not need the mother’s testimony to present and try this case, and without her, this whole episode with the bag never gets in front of a jury; it’s totally irrelevant. Arguably, were mom to testify, it could be brought up to assail her credibility, but that’s it. It can’t be used to challenge the credibility of the alleged victim herself.

Cambria’s Bluster

It also bears mentioning that Paul Cambria is wrong – none of this establishes that the underlying rape allegation is a “fabrication”, and he’s blustering for his client. Cambria’s posturing is unseemly, and the leaks to the media about the results of the DNA tests likely came from someone in or close to Kane’s defense team and need to stop. Those leaks are poisoning the jury pool and thwarting justice. Unfortunately, we have Eoannou to blame, since his very public accusations regarding that evidence bag opened the door for Cambria to speak publicly, as well. All of this was horribly thought-out, and has exploded in the complainant’s team’s face.

If the complaining victim’s mother lied to Tom Eoannou; if a tangential witness lied to her own lawyer, who has no official role in the prosecution, how exactly does this reflect poorly on the complaining victim herself? It doesn’t. It’s just a sideshow. It’s a shitshow, to be sure, but full of sound and fury, signifying nothing. The prosecution – if it comes – will be brought by the District Attorney’s office. Eoannou’s only role was to help the accuser’s family navigate a complicated and nerve-wracking system for victims whose interests are not always directly protected by prosecutors.

At this point, the alleged victim’s mother may have bought herself a prosecution of her own.

Fraud and Eoannou’s Withdrawal

Whether a prosecution comes is up to the District Attorney’s office. Will this behavior by one ancillary witness cause a notoriously cautious office to beg off? In a statement to the press last night, the accuser’s family says that she has, “every intention of pursuing this case to a just conclusion.”

One troubling aspect of all of this is this: although Eoannou may have felt an ethical obligation to withdraw from this representation based on the alleged victim’s mother’s behavior, he had no duty to do it so publicly. Ethical Rule 1.16 is instructive on this matter: if Eoannou felt a duty to so quickly and publicly withdraw, he suspected the mother was committing some sort of fraud.

It bears repeating that ejaculation is not an element of the crime of rape, and the absence of Kane’s DNA alone should not – and does not – absolve him of rape in this case. Likewise, the reported presence of another person’s DNA does not absolve Kane of rape. If I were to speculate, I suspect that the alleged victim’s mom likely concocted the “I found a ripped-up bag” thing because she’s legally unsophisticated and thought she could manufacture some sort of doubt about the DNA evidence. When Eoannou found out the truth, he had to quit (a) because she tried to commit a fraud; and (b) he helped promote it; and (c) he came out looking stupid when it turned out to be false.

However, a lawyer can only withdraw if he can do so “without material adverse effect on the interests of the client”. Query whether the way in which he announced his withdrawal met that requirement. I don’t think it did, and I think the myriad Tweets I’m seeing demanding that the alleged victim – who even Eoannou says is innocent of this aborted fraud – be prosecuted for extortion, underscores my conclusion.

Transfer Venue

One thing is certain, in my mind: the venue for this case must be changed. Send it to Jefferson or Broome County and get it away from the Buffalo media market in order to find New Yorkers who don’t care about Patrick Kane to analyze and find the facts in this case. I don’t think that Kane – or the prosection – can get a fair trial in Erie County, and the whole thing should be moved pursuant to 230.2 of the Criminal Procedure Law. Under NY law, both sides can request transfer of venue.

Everyone Dummy Up

It is my hope that this matter goes before a grand jury sooner rather than later, and that somebody goes before a judge and asks for a gag order on all counsel and witnesses. All of this underscores what I’ve been saying since the day Mark Croce decided to tell the Buffalo News about what a classy joint he runs and how these girls were hanging all over Kanereveryone should stop talking to the media.

Patrick Kane and the Evidence Bag

eoannou

I’ve been writing pretty regularly about the need for everyone involved with the Patrick Kane rape investigation—lawyers, cops, witnesses, and parties—to be quiet and stop feeding the media. If the underlying desire—regardless of whether you side with Kane’s alleged victim, or with Kane—is to find justice, you won’t find it by trying the case in the press.

On that front, Wednesday September 24, 2015 was an absolute legal shitshow.

In fact, the whole week has been pretty horrible; remember Monday’s stories about what sort of DNA was found in the rape kit? There’s no reason for the general public to know that, at this point in the investigation. But Wednesday was something different; something special.

If you haven’t already heard, Thomas Eoannou, the criminal defense attorney advising Kane’s alleged victim, held an extraordinary press conference. Eoannou alleged that someone had deposited a brown paper bag at the home of the complaining victim’s mother. He went on to claim that the bag was absolutely, positively the one that once contained the rape kit administered in August at ECMC. The bag was ripped open and empty, and on it was a hospital label with the victim’s personal details and other information. Here it is in its entirety:

Pretty dramatic stuff, and if accurate—that someone had tampered with physical evidence of an alleged crime—beyond alarming. Never before had I heard of such an egregious mishandling of physical evidence of a crime, at least in an advanced first-world democracy. While Eoannou thanked the “good samaritan” who dropped the bag off, tipping the alleged victim’s family off to this break in the chain of custody, my initial reaction was that this was some sort of intimidation.

But not so fast.

Hamburg Police had this to say about it:

So, Hamburg’s chain of custody is in order. What about Erie County, whose Central Police Services (CPS) handles and stores this sort of evidence?

So, the county can also vouch for the state of the evidence, and that it is all present and accounted for.

So what is Eoannou talking about, and what was in that bag?

Shortly after Eoannou was done talking, all the press rushed down Delaware to the office of Patrick Kane’s lawyer, Paul Cambria. There Cambria, who had not previously commented about the case, except on my personal Facebook page, sang like a canary. Patrick Kane is the real victim. Kane’s DNA was not found “below” the alleged victim’s “waist”, but others’ DNA was. Because the findings from the rape kit were helpful to Kane, his side had no motive to tamper with any evidence. Only someone unhappy with the results of the rape kit would do such a thing.

People on Twitter commented on the “money soap” and Hustler 40th Anniversary mug on the bookshelf in Cambria’s office. Paul’s Hustler Mug is on Twitter.

The spectacle grew more surreal with each passing moment.

Here is a close-up of the redacted sticker on the bag Eoannou revealed:

That’s a regular grocery bag with a hospital sticker on it. Could Eoannou be incorrect? If Hamburg and Erie County confirm that all evidence and containers are present and accounted for—secure and unmolested—was this a mistake? Was it some PR stunt designed as a response to the persistent and constant pro-Kane leaks to the Buffalo News and other media outlets?  The pro-Kane PR juggernaut has been effective and well-funded up until now—not so much for the alleged victim. She is unknown and her side has been silent, until now. The information reported by some outlets had to come from either law enforcement or Kane’s legal team.

Also, let’s parse Cambria: no Kane DNA below the waist. But what about bitemarks on shoulder? Other DNA, above the waist? What about under victim’s nails? He limited his statement very strategically. The leaks about the absence of Kane’s DNA was especially harmful because for some reason people think that you need ejaculate for there to have been a rape. You don’t.

Eoannou’s bag almost certainly at one point contained some piece of evidence that was obtained at ECMC on the morning the rape kit was administered. It’s feasible, for instance, that an item was stored in there but the police took it away in a different bag. What’s clear is that everyone with no stake in the outcome of the underlying rape case agrees that the rape kit hasn’t been tampered with.

It’s also quite clear that the delivery of that bag to the victim’s mother’s house means something. What? No one knows. No one is likely to know unless the person who dropped it off comes forward. Was it to be helpful? Intimidating?

In the end, we learned that Buffalo lawyers and media are a bit clumsy when it comes to dealing with a super-high-profile criminal investigation. Hamburg and the county were quick to react to Eoannou’s charges, and it quickly turned the matter from one type of WTF into a wholly different and distinct type of WTF.

A lot of rumors flew around today, too. No one knows what’s true and what’s not. But one thing became crystal clear on a warm Wednesday afternoon in Buffalo: that the people involved in the Patrick Kane rape investigation really, really need to stop talking to the media. All of them—Cambria, Eoannou, law enforcement—everyone. We don’t need odd press events about brown paper bags any more than we need bar owners engaging in some good old-fashioned victim-shaming.

Justice is not being served by transforming a spectacle into a circus.

Patrick Kane and DNA

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It’s been quiet lately on the Patrick Kane rape investigation front. Here’s what happened in August:

Why Mark Croce went to the Buffalo News: August 9, 2015

Slut-Shaming and the Patrick Kane Case: August 12, 2015

The Patrick Kane Case FAQ: August 13, 2015

Patrick Kane’s Designated Driver Opens Yap: August 17, 2015

Paul Cambria on Patrick Kane: Don’t Prejudge: August 18, 2015

After the initial round of victim-shaming and leakage to the media, the meme over the past few weeks has been “will they or won’t they”? Specifically, will Kane and the victim reach some sort of private, civil accommodation (read: payment) in order to avoid a prosecution?

Although a civil settlement would likely involve some promise that the alleged victim would not testify against Kane or otherwise cooperate with any prosecution, it is not completely impossible for a D.A. to prosecute anyway; difficult, but not unheard-of. The upshot of it all is that District Attorney Sedita’s office mysteriously postponed the first day of grand jury testimony, and it’s scheduled to begin shortly. Reports of a possible settlement are contradictory and likely speculative.

In the meantime, Kane appeared at a bizarre press conference where he apologized for the “distraction” and otherwise generally appreciated – but did not answer – everyone’s questions.

In Sunday’s Buffalo News, however, we have more leaks from people who are likely aligned with Patrick Kane’s legal team, or else are superfans working for law enforcement. The News reports:

DNA evidence does not confirm a woman’s allegations that Patrick Kane raped her, four sources familiar with the case told The Buffalo News.

DNA tests taken from a rape kit conducted on the woman showed no trace of Kane’s DNA was found in the woman’s genital area or on her undergarments.

The lack of that DNA evidence does not necessarily mean a sexual assault did not occur, legal experts say, and the evidence involved in this type of investigation typically consists of more than just DNA. The investigation continues, and Kane has not been charged with any crime.

The only thing missing is a quote from a bar owner about how the alleged victim was asking for it.

Whoever these four sources are, they’re in the tank for Kane. Full stop. This is yet another piece of the elaborate and well-remunerated public relations war being waged against the alleged victim in an effort further to victimize her, shame her, and to try this case in the court of public opinion. Justice is not being served here – only the interests of a very wealthy and famous young man who finds himself in very deep trouble indeed.

But what about this, from a prosecutorial point of view? First, let’s ask a former sex crimes prosecutor who also happens to be a female:

“The absence of DNA and semen, in itself, does not prove that there was no rape,” said Florina Altshiler, a Buffalo attorney who worked as a sex-crimes prosecutor in Alaska. “It proves that there was no ejaculation, or possibly, that the perpetrator wore a condom.”

Altshiler said she is aware of cases in which rapists did wear condoms.

For the counterpoint, let’s ask a male, retired District Attorney:

Frank J. Clark, the county’s former DA, offered a different opinion.

If none of Kane’s DNA was found on the woman’s genital area or in her undergarments, that information “could be a game-changer” in Kane’s favor, he told The News.

“If the vaginal swabs taken at the hospital show no sign of his DNA, that could very well exonerate him of rape,” Clark said.

The occasion of a rapist using a condom is “extremely rare” in his experience. Clark said.

So there you go. Here’s a bombshell piece of leaked information of unknown provenance! What does it mean? MAYBE NOTHING, MAYBE ALL THE THINGS. Feel more informed?

Still, Kane’s DNA was found beneath the woman’s fingernails and on her shoulders, according to two of the sources, one of them a member of law enforcement.

Whatever occurred between the two prompted the woman to abruptly leave Kane’s home, call her brother on a cellphone, go to a local hospital to be examined for signs of rape, and to file a crime report with Hamburg Police, claiming that Kane attacked her, according to authorities and sources close to the case.

I don’t think its a credit – legally speaking – to the News’ four ejacualatory sources that Kane’s DNA isn’t where one might expect it to be, but rape means any unwanted penetration – however slight, so it’s likely that the alleged victim said no, Kane went for it anyway, and she managed to fight her way out of there before Kane finished. After all, Kane’s DNA was found on her, just not around her genitals or in her underwear.

Thanks to the News’ sources, we can now have this discussion: there doesn’t have to be semen for there to have been a rape.

Again: I don’t know whether or not Patrick Kane raped anybody; I certainly hope no one raped anyone. In mid-August, I implored people close to the case to stop talking to the media. As I wrote then, “…the jury pool poisoning is continuing apace — of course, no one has yet been charged with a crime, but it’s safe to say that the authorities are investigating whether one happened, and whom they might charge. So, what we see happening as the coverage lurches from Mark Croce’s victim-shaming to anonymous supporters of the alleged victim defending her, to Lieutenant Thomas English, the aforementioned designated driver turning to the News to rebut the alleged victim’s friends’ assertions.

“The whole case has devolved into a public relations battle. In this case, Kane has deeper pockets, star power, and more to lose, so it stands to reason that his PR effort would be well-funded and professional, while the alleged victim’s side has been silent, and some friends talked to the News without attribution.”

The PR effort calmed down a bit, but Sunday’s article reveals that the court of public opinion is in session, and that maens Kane’s alleged victim is now on trial. Cui bono? Obviously, Kane – casting doubt on the very existence of any “rape” certainly helps his image and bolsters those die-hard fans who refused to believe the allegations because of the identity of the accused. What if the leakers are from the DA’s office? This sort of revelation would, let’s say, soften the blow if charges aren’t filed – regardless of the whether there’s been a civil deal.

Justice isn’t being served here.

Patrick Kane’s Paid Designated Driver Opens Yap

In the Buffalo News, friends of the alleged victim would like you to know that she’s a responsible and trustworthy sort and that she deserves people’s respect and consideration. It seemed a “too little, too late” response to the appalling victim-shaming Kane’s alleged victim received thanks to Mark Croce. (Here, once again, is the Pat Kane FAQ).

We also recently learned some details from the off-duty cop who gave Pat Kane, his male friend, the alleged victim, and her female friend, a ride from Buffalo down to Kane’s house. The cop’s information appears to contradict the alleged victim’s friends’ assertion that she didn’t want to go to Kane’s house, but went to accompany her friend. All of this cross-talk isn’t helping anyone but Kane. Everyone – and I mean everyone – should take a cue from all the lawyers involved in the case and stop talking to the press. This is especially true for the people who have ancillary “information” that bears no reasonable connection to the alleged rape itself. It doesn’t matter who consented to ride to Lakeshore with whom, or for what reason – the News has not spoken with anyone who was in the room with Kane and the woman who was allegedly raped, and that matters because what happened before – at the bar or in the car – isn’t relevant.

The same goes for the alleged victim’s friends who were trying to help. None of them are witnesses as to what happened, yet they’re talking to the media about the alleged victim’s character. I’m sure they thought it might help, but now we have people who are connected to Kane going to the press to contradict that fact. Consider that Buffalo Police Lieutenant Thomas English,

…said he supports Kane, a longtime family friend who has employed him for the past five years.

So a police officer who stands by to drive Kane home when he’s too trashed to drive wants you to know that the alleged victim really wanted to go home with Kane, if you know what he means. Is this real life?

Incidentally, Kane’s buddy whom English also drove that night is Tom Cowan, a co-owner of Rocco Termini’s ridiculously named Dog-E-Style, Doc Sullivan’s, City Tavern, and the space formerly known as Nektar on Elmwood.

“It was a mutual agreement to go hang out at the house,” English said.

So, Kane’s employee says there was consent to hang out. That doesn’t mean that there was consent to have sex.

English, in discussing the Kane matter, was not speaking as a representative of the Police Department. Officers are prohibited from speaking to reporters in official capacity.

Croce said he spoke last week with a District Attorney’s Office investigator and told his general manager to fully cooperate with the authorities in providing a list of bartenders and their contact information.

So, here’s a question – what’s on Kane’s bar tab from that night? Croce went out of his way to tell the News that Kane only had a couple of drinks and a couple of shots in an effort to establish that he wasn’t visibly drunk. Go get that information. After all, that bar tab is impartial and has no motive to support or attack anyone.

If you want to read something responsible about the Kane case in the Buffalo News – something that isn’t based on irrelevant observations, hearsay, irrelevant extraneous information, and information about the alleged victim’s character – in other words, if you want to read something that doesn’t pre-emptively poison the jury pool and attempt to try the case in the really unreliable court of public opinion, then read this “Another Voice” by Jessica Pirro from Crisis Services, and this commentary by Amy Moritz on rape culture.

The accused athletes are not unfailing heroes. They’re not your “brah” even if he did once buy you a shot. Nor do all athletes abuse their protected cocoon of athletic privilege.

So let’s step away from our corners and our fierce loyalties and take a beat.

Let’s move beyond playing the ill-informed “he-said-she-said” game and really examine the ways in which our sports culture perpetuates rape culture.

Everyone who thinks they observed something needs to shut up, and the good-hearted people who are trying to bolster the alleged victim’s character aren’t necessarily helping, either. “No comment” works, and talk only to the cops – not to the press.

The Patrick Kane Case FAQ

On Sunday morning I wrote a piece that was critical of the Buffalo News‘s transcription of SkyBar owner Mark Croce. Not being a sports guy, I’ve been surprised by how much that post blew up, especially on Twitter. A solid majority of people were in agreement that Croce’s comments to the News were little more than the first salvo in what is likely to be a long and drawn-out effort by people aligned with Kane to blame the victim. A small minority of people were indignant, insisting that neither the News nor Croce did anything wrong, and an even smaller minority simply spewed ad hominem attacks.

Earlier this week, I followed up on Sunday’s piece by publishing this story, responding to the irony of Maki Becker’s piece in the News about victim-shaming in rape cases, and a second article questioning why it was that the Buffalo News‘s sports columnists—with the exception of Tim Graham—were utterly silent on such a big story.

Since then, Bucky Gleason wrote what I consider to be a weak opinion piece about not jumping to conclusions, and the News has a follow-up story that appears to try to fix some of the truly egregious damage that Mark Croce did to the alleged victim in the pages of the paper on Sunday. Tim Graham’s byline has been added to the story.

Brad Riter and I discussed all of this at some length at Trending Buffalo.

All that prompts me to this: the Pat Kane FAQ.

1. Pat Kane: innocent until proven guilty / presumption of innocence

Yes. In court—by a judge and jury—Kane is entitled to a presumption of innocence.  The prosecution—in this case the Erie County District Attorney’s office—bears the legal burden to prove its case beyond a reasonable doubt. In real life, however, the presumption doesn’t preclude the average person on the street from thinking whatever you want.

But if you insist on “innocent until proven guilty” as it relates to the superstar athlete, then it logically follows that the alleged victim’s story should be treated as true until proven false.

2. No Charges Have Been Filed: What Does That Mean? 

It means the police and prosecutors have not yet concluded their investigation, and they aren’t yet prepared to bring charges against Kane, present the case to a grand jury, arrest him, or undertake any other action towards prosecuting him. These things take time—there are tests to conclude, witnesses to interview. Because of its high profile, and because the victim and the accused both have lawyers representing them, everything will be done with exquisite care.

3. The only evidence is scratches and bite marks, right? 

Right; and, frankly, you shouldn’t even know that. Whoever told that to the Buffalo News was likely speaking out of turn and had no authority—legal or otherwise—to pass it along. Among other concerns, HIPAA prevents confidential medical information from being released, so quite frankly you and I don’t know what evidence exists, nor will you until such time as the matter is tried to a jury. Stop asking.

4. Did Croce Do Anything Wrong? 

I think so, and so do many other people, including:

Croce was under no obligation to speak with the media in general, or the Buffalo News in particular. Insofar as neither Croce nor the reporters could verify that the woman described in Croce’s statement has anything to do with this case, the information was completely irrelevant. The only thing his comments did was begin the spiral of victim-blaming and slut-shaming that contributes to bro/rape culture in this country, and that issue is especially acute when you’re dealing with a wealthy, successful, popular, good-looking young star athlete. The athlete has a lot to lose if, in fact, he committed a crime, so it isn’t unthinkable that there would be a sudden and concerted effort to accuse the victim of making it up, being a gold-digger, somehow deserving of what victimized her.

All of this is even more acute now that we have some information that the alleged victim a) was not the woman who wanted to accompany Kane to his home; and b) is by all accounts a responsible, motivated, respectful, and honest young woman.

5. Mark Croce didn’t do anything wrong! He’s just reporting what he saw!

Well, what precisely did he see that is relevant to this case? He doesn’t have the facts right, but he sure had a motive to open his yap. Croce went out of his way to tell the News that he saw a woman being flirtatious and hanging all over Kane at his bar that night. He also went out of his way to tell everyone that Kane wasn’t drunk. As I reported on Sunday, that’s significant for two reasons: 1. If Croce’s bar served alcohol to a visibly intoxicated Kane, that is a violation of the Alcoholic Beverage Control Law of New York; and 2. If Kane was drunk and tries to use that as part of his defense, Croce’s company, Buffalo Pub Concepts, Inc, may be liable to Kane’s alleged injured victim in a lawsuit brought under New York’s Dram Shop laws. Croce also had a motive to go to the News because he doesn’t want to slight Kane, who was evidently going to bring the Stanley Cup to one of Croce’s establishments last weekend.

As I mentioned before, Croce was under no obligation to go to the media about this. Given his company’s potential liability exposure, he’d have been smarter to issue a “no comment” and let his PR team or lawyers handle it. He was wrong for essentially slut-shaming a young woman who patronized his bar—whoever she was. But more significantly, he was wrong for letting loose the insinuation that the woman he described might be the alleged victim in the case, and because of her behavior at his bar, place doubt in people’s minds about the issue of consent. It was, in a word, despicable. 

I will never patronize one of his places again, and neither should you. (I’ve actually had that personal rule for five years, but that’s a whole other story). 

6. The Buffalo News didn’t do anything wrong! It’s just reporting what Croce said!

This isn’t how this is supposed to work. Do you want confirmation of your pre-existing bias, or do you want information? If you want the former, then the News was right to act as Croce’s slut-shaming stenographic service. If you want the latter, then you’ve learned absolutely nothing, except that the self-interested owner of the bar where Kane was drinking that night wants you to know he didn’t think Kane was drunk, and that he saw a pretty aggressive girl hanging all over Kane. The Buffalo News, as the sole paper in town, has a responsibility to print information that is relevant and newsworthy—Croce’s remarks about the flirty girl around Kane were neither. His remarks about Kane’s intoxication should have been offered with the caveat that Croce has an interest in getting that story out. Dan Herbeck defended this part of the report, and that he has the support of his editors. How truly sad that is; it’s truly tantamount to protecting the very powerful at the expense of the powerless.

In any event, reporters aren’t just stenographers—they should offer context and background. They should leave you informed, not inflamed.

7. Croce didn’t call her a slut, you did!

You’re right—Croce didn’t come right out and call the girl whom he saw a “slut”. Then again, neither did I.  I also didn’t say that he called her that. I said he was engaged in “slut-shaming“—click the link to see the definition. Again,

Croce told The News that he and several of his employees noticed a young womanhanging all over” Kane at SkyBar for at least two hours that night, putting her hands on his arms and “being very forward, very flirtatious with him.”

Even if Croce could somehow establish that the woman he’s describing is Kane’s alleged victim, this is all completely irrelevant to the question of whether Kane and she engaged in consensual sex later on that night. Indeed, its only purpose is to insinuate that it was the same woman, and that she was deserving of whatever happened back at Kane’s house later on.

But it’s even worse than that because Croce,

…said he does not know the woman and does not know her name.

Well, then the entire thing is irrelevant nonsense, and he only made it worse.

“It was almost like she stationed herself near him and was keeping other women away from him,” Croce said. “I noticed it and kind of laughed about it.”

So, we’re discussing rape allegations, and Croce is finding the humor in it all.

A bar manager that night also noticed the woman’s behavior with Kane, Croce said.

Objection. Hearsay.

Croce said the woman and a female friend “followed” Kane as he left the nightclub with a couple of male friends around 3 a.m. last Sunday.

I don’t know if this is the same woman who made the rape allegation against him,” Croce said. “I only know what I saw that night on my own premises. If you’re going to ask what happened between them after they left that night, how would I know?”

You wouldn’t. You frankly don’t know jack shit about any of it.

“This is America, the place where you are still innocent until proven guilty,” Croce said.

It’s also the place where you leave rape victims alone and don’t try to smear them, especially when they’re not exactly, e.g., rushing out to take advantage of their 15 minutes of fame.

8. She left the bar at 3am with Kane! It’s her own fault!

No, that’s false. First of all—that information is part of what Croce said about the mystery girl he saw hanging all over Kane at the bar, and we don’t know who that was. Indeed, the News now tells us that the alleged victim didn’t want to go, but went with her friend, who did. Nevertheless, here’s a quick little video to explain the idea of consent.

9. What does Kane’s lawyer have to do with this? 

We don’t know. The Buffalo News mentioned that Kane’s lawyer Paul Cambria was seen at SkyBar the same night as the events that Croce described. We don’t know what Cambria may have observed or witnessed, so there’s no way of knowing if Rule 3.7 of the lawyers’ ethical rules is a concern here. That provision generally prohibits a lawyer from representing someone in a case where he may also be called as a witness. Insofar as Cambria may have observed Kane, whom he was with, and what his demeanor or sobriety was, and that may preclude him from representing Kane in this particular case.

But it may not. It’s too early to tell, and we don’t have enough information. It’s just a possibility.

10. This is just your opinion!

Yes, mostly. That’s why it says “commentary” above in big red letters.

11. Kane is innocent! 

Innocent of what? He hasn’t been charged. He is presumed innocent in court, but as of right now we also have no reason to not believe the veracity of any allegation against him.

12. Is it cool to post what I think is the victim’s identity on the internet? 

No. Doing something like that—whether you’re right or wrong—makes you a class-A jerkoff. Have a little respect for this woman and leave her alone. By the way—if you’re wrong, you might be defaming whomever you’ve named.

Indeed, an especially irresponsible area media outlet has all but outed the alleged victim in this case and gone much further to try to blame her for her own alleged victimhood than Croce did. I won’t link to it or mention it, but suffice it to say that the outlet in question is run by a renowned gynophobe.

13. Is Mark Croce correct when he says he has, “no skin in the game”? 

Hell no. See #5, above. He has loads of skin in this particular game.

14. What do you think of Bucky Gleason’s piece? 

It came out several hours after I asked where these guys all were. I thought it was weak—the Chicago columns were, I thought, more reasonable and more clearly rejected the whole Kane-sports-god meme. I’m not a follower of his work, so I don’t know the extent to which it is consistent with his general reaction to criminal allegations against local sports figures, but…

This is no time to rush to judgment, whether you’re a sex-crimes expert or proud owner of a No. 88 jersey. It’s difficult to comprehend Kane would commit such a crime. It’s difficult to comprehend a woman would concoct such an allegation. Perhaps everyone can agree that there will be no winners.

It is, however, time to respect the rights, privacy, and veracity of the alleged victim. It’s also a great time to confront the bro/rape culture.

Like I said, we don’t know if anyone’s being charged, or with what. We don’t know who the victim is and what her injuries are, and we should keep it that way. We should also avoid and condemn any victim-blaming and slut-shaming whenever we see it. Any more questions? Email buffalopundit[at]gmail.com and follow along on Twitter @buffalopundit.

Buffalo News Sports Columnists: Where Are You?

graham

There are 30 teams in the NHL. (I don’t know from sports, so I had to look it up).

That means there are at least 30 local papers with sports columnists who offer opinion and commentary on things having to do with sports. It would make sense that they’d offer up opinions on local sports stories, national sports stories with a local angle, sports stories that may somehow affect a local team or player, and presumably anything else that they or their readers might deem interesting.

I didn’t have time to look them all up.

It goes without saying that an international superstar athlete being accused of rape is a big story. An international story, in fact, given the roster of NHL stars from other countries.

It, therefore, follows that you would expect the sports columnists who write for the single paper that exists in the city where the alleged rape occurred to be all over the story; “on it“, as we like to joke. You would expect that the media in the cities most directly affected—Chicago and Buffalo—would be clamoring not only to break news, but to offer some sort of insightful commentary.

Online, the Daily Beast wrote about it. So did DeadspinThe Times is “on it”, and so is “Fansided“.

Kane plays for Chicago’s Blackhawks, so that city’s columnists have been all over it. Here’s Julie DiCaroSteve Rosenbloom, and David Haugh in the Chicago Tribune, and CBS Chicago’s Jim Baffoe and Dan BernsteinRick Telander in the Sun-Times had a column about Kane, too. Matthew Schwerha in the Sun-Times explains how to handle these allegations with kids.

The Sporting NewsAndrew Forbes, a Colorado student paperProHockeyTalk at NBC sports, and USA Today all opined on the matter.

So did Russia’s ChampionatTASS, and SovSport.

So did the Czech Republic’s AktualneHokejportalDenik, and Hokej.guru.

In Finland, it was picked up by Jakiekko ExperttiSeiska.fiIlta-Sanomat, and MTV.fi.

It’s been covered in Sport1.deBluewin.ch, the Aargauer Zeitung (Kane played in Biel, Switzerland during the 2012 lockout). That’s why a paper in the Italian-speaking Swiss canton of Ticino covered it, too. So did Le Matin.

You know who hasn’t written about it very much? At all, really? The Buffalo News’ sports columnists.

The Buffalo News has not published a single, solitary opinion piece about the Patrick Kane rape allegations from any of its columnists or bloggers. Nothing.

Harrington has a baseball piece from August 8th. There’s a Greg Connors piece about fantasy football. On August 6th, Bucky Gleason reminded us that Andre Reed is a great guy. Jerry Sullivan’s most recent column is about Bill Polian, dated August 5th.

Sullivan has been silent on Twitter since August 5thBucky Gleason tweeted out an August 8th BN story about how this whole pesky rape thing overshadowed Kane’s day with the Stanley Cup—nothing else. Harrington’s notoriously prickly Twitter account? Silent on Kane.

The only Buffalo News columnist who has treated this rape allegation story with the seriousness it deserves—at least, via Twitter—is Tim Graham, who has been all over it during the past several days.

I don’t know if anyone’s on vacation this week or what, but it seems outlandish to me that the Buffalo News’ opinion machine—whether it’s the editorial board or any individual columnist—has been completely silent about an international story involving a local mega-star. Even the BN Hockey Blog has nothing new or salient.

Have they nothing to say?

Are they being told to keep quiet?

Are editors spiking or delaying stories or columns?

Is there some sort of editorial crisis going on?

What the hell is going on? Why wouldn’t the Buffalo News want to try and compete with Chicago’s sports media about what they think about these Pat Kane allegations?

Could it be that Sunday’s disastrous use of victim-blaming quotes from local asshole club owner Mark Croce is the root of this crisis? Has the Buffalo News so beclowned itself that it has effectively forfeited the ability properly to cover an international story happening in its own backyard?!

By the way—wouldn’t it be funny if Croce’s rush to comment to the News came back to bite him? For instance, what if the woman he described turned out to have been under the age of 21, in which case she had no business being at SkyBar? Wouldn’t that just be poetic?

Whatever it is, the Buffalo News is harming its own reputation through dumb acts and blind omissions.

Slut-Shaming and the Patrick Kane Case

pkc

Late Tuesday, an article by Maki Becker appeared on the Buffalo News’ website entitled, “People take to Twitter to victim-blame after Patrick Kane allegations.

Based on that title alone, it’s safe to say that there is some major internal strife at the Buffalo News over its editorial decisions relating to the Patrick Kane case. After all, on Sunday the Buffalo News itself ran a front-page story that contained a clumsy, misogynistic attempt at victim-blaming.

As a matter of fact, Sunday’s piece could have been entitled, “Restaurateur Takes to Buffalo News to Victim-Blame After Patrick Kane Allegations.

For the News to now decry (or, let’s say, disapprovingly highlight) a handful of anonymous Tweeters’ victim-blaming, whilst simultaneously contributing to it with the help of a rich and prominent restaurateur, is sheer chutzpah.

It’s easier to shame Twitter anonyms than it is the guy renovating the Statler.

So, the News is broadcasting that it’s bad for some random idiot with the handle @88forever (or something) using Pat Kane’s face as his avi to Tweet how Kane’s alleged victim had it coming, but it’s perfectly ok for nightclub owner Mark Croce to tell two male reporters from the Buffalo News that some woman he saw with Kane at his bar the night of the alleged incident was, “hanging all over” Kane; that she was “forward” and very “flirtatious”. It’s ok for him to add how she was possessive of Kane and demanding of his attention before she left with him and some others. Wrong.

Becker’s piece quotes Robyn Wiktorski-Reynolds from Crisis Services who calls these sorts of slut-shaming, victim-blaming comments, “misguded”, “ignorant”, adding, “these types of things have a chilling effect. It’s repeated and it creates a culture and we’re just perpetuating that culture.” She also addresed Croce’s comments:

Many people have been critical of bar owner Mark Croce’s statements to The Buffalo News describing seeing a woman with Kane at his bar on the night of the alleged attack.

Many people have also been critical of the Buffalo News for printing them because of how inflammatory and irrelevant they are.

The attack allegedly took place later that night or the following morning at Kane’s house. Croce said he did not go to Kane’s house and does not know what happened there.

“A victim should never be blamed,” Pirro said in an emailed statement about Croce’s quotes, as well as comments that have been on social media about the alleged rape. “No one chooses to be raped and any public statement that implies that is just as problematic as a perpetrator’s decision to rape.”

Wiktorski-Reynolds said blaming the victim for a rape because she – or he – showed interest in the assailant perpetuates a culture that tolerates rape.

“They say: ‘What did you expect? Why did you go to the house? Why were you drinking?’ That takes the perpetrator off the hook for not listening, not stopping. … You can change your mind. You have free will.”

The Buffalo News waited two days—and it took a female reporter—to remind people that, “In the eyes of the law, the events leading up to the sex act don’t matter…[c]onsent is one of those things that can be removed at any time during the encounter.” So, it doesn’t really matter what Croce saw, even if he could identify the woman as Kane’s accuser.

Have you noticed, by the way, complete and utter silence from the Buffalo News’ sports columnists? You’d think that a local sports phenomenon being accused of a serious felony would be a big topic. An important topic. 

On the issue of withdrawn consent—again, we don’t know what happened or what anyone will be accused of, so this is all hypothetical—what would it take for the Kane die-hards on Twitter and in the Buffalo News’ offices to take these allegations seriously?

We know from the Sunday piece that the alleged victim, “had bite marks on her shoulders and a scratch on her leg after the alleged attack.” But I’ve seen people dismiss that as not a big deal; evidence of nothing more than, e.g., rough sex.

What would it take for people to take it seriously? What if the alleged victim had been bitten several times? Would that change things for you?

Does it have to be more serious than that to prove lack of consent? What about a broken finger, would that be enough?

Would you treat it with more seriousness if the complainant, say, had a broken arm? Is that enough to show that there’s something serious going on? Then would you believe her and credit her story over that of your young, hard-partying hockey hero?

Who’s going to prosecute this case, by the way? We know that it’s very likely that D.A. Frank Sedita is running for Supreme Court—he’s all but announced. His chief of homicide Jim Bargnesi is currently running for Erie County Court. Should Sedita appoint a special prosecutor to ensure that the case is handled properly with the attention it deserves, and to ensure that electoral politics don’t have any adverse consequences on it? Should Sedita resign and pursue his judgeship and let someone take over for him in the interim? This case is a serious one with the potential to end a local sports hero’s career, and no one can afford any distractions.

Finally, I’ve already alluded to the question of Kane’s attorney Paul Cambria to represent him in this particular case due to the possibility that he observed and witnessed something having to with Kane on the night in question. The courthouse grapevine is overactive with rumors of the Kane camp already looking to replace Cambria with someone else.  Names being mentioned include Terry Connors, James Harrington, and Joel Daniels.

The Buffalo News owes it to the alleged victim in this case to do more than just have Maki Becker write a socially responsible article about blaming rape victims for the crime committed against them. It owes that woman – whoever she is – an abject apology. The editor of the paper needs to speak up and explain why the paper felt it necessary to include Croce’s inflammatory and self-serving “observations” when they represent the very slut-shaming Becker examines on Tuesday.

The Buffalo News is the only daily paper in town and it has no public editor or ombudsman. It desperately is missing a mea culpa.

In response to Becker’s piece, the News wisely shut off its Disqus comments, but two got in before the lock:

The only thing that comes to mind here is that some at the Buffalo News recognize that it really messed this up on Sunday, and that it made a serious editorial error that it can’t now undo. I don’t see a lot of people defending Croce or the News, except for the ilk that is the subject matter of the Becker piece. And in there, these words are key:

“It’s not about access to sex. It’s about power and control,” she said. “It’s about using sex as a weapon rather than something else.”

She pointed to studies by the Department of Justice that showed that “false reports” of rape are rare – about 8 percent – which include cases that couldn’t be prosecuted for a variety of reasons.

Deciding to go forward to the police to report a rape and undergoing a “rape kit” are never easy for victims of sexual violence, Wiktorski-Reynolds said.

“People aren’t going to the hospital and going to the police because it’s fun or because they’re looking for attention,” Wiktorski-Reynolds said. “It’s a very, very invasive process. It’s serious. It takes hours. There’s a lot that’s entailed.”

It ain’t the 50s anymore, Buffalo News. You went a long way towards perpetuating and promoting rape culture on Sunday. It’s going to take a lot more than pointing fingers at random strangers on Twitter to make amends. Point fingers where they more properly belong—at the people who should know better; at Mark Croce, Dan Herbeck, Lou Michel, and whoever green-lighted that garbage.

The Schmidbauering

Joe Schmidbauer cranked up ye olde Altpress machine to excrete this.

A young lawyer comes to town from the Boston area and with great hubris brands himself the Buffalo-pundit all the while living in suburban (white bread) Clarence and thereby gains entrance to the lucrative networking game called local politics.

WOW! That’s the best opening paragraph, ever! I came here to take over your internets, Buffalo!

The truth is that I arrived here fifteen years ago(!) one of those rare “newpats”.  In 2003 I started a blog to get out the word for a local Presidential race I volunteered with. When that guy dropped out, I blogged about national politics. It wasn’t until 2005 that I used “Buffalopundit”  because that’s what bloggers did – they adopted noms de plume. I switched focus to local issues, especially in light of the red/green budget fiasco. That’s how it started. I was writing about Buffalo – not just the city of Buffalo, but the metropolitan area of Buffalo. It was my daily letter to the editor, and to an extent remains that way.

I never blogged in order to “gain entrance to the lucrative networking game” called local politics. At my work, our firm represents Erie County in a very small number of matters, and I was honored to be appointed to the board of the Buffalo & Erie County Public Library.

It doesn’t matter that I live in Clarence. I spend most of my waking day in Buffalo; I work in Buffalo, I spend my money in Buffalo, my taxes go to pay for things in Buffalo. Buffalo is a place I care deeply about. After all I chose to come here. 

The irony has not been lost on many people. Complaints about his white suburban roots are old but very real. In his political commentaries on local politics, he has taken on the role of being the white knight of “liberal” political reform.

I wouldn’t say that living in Clarence since I was 33 is my “roots”. Fuck you for the insinuation, by the way. My roots are far more complicated and complex than that, and I’m not going to recite them to defend myself against a hateful and false allegation. Just – fuck you, Joe.

The phrase getting Bedenkoed was coined by the answer-lady (a University Heights blogger) during a blogging feud with Belenko over his legitimacy in calling himself the Buffalo-pundit while living in Clarence.

Who’s this “Belenko” character? Anyhow, if “Buffalopundit” is a misnomer because I live in Clarence, “Answer Lady” was a misnomer because she didn’t answer some very basic questions, allowing herself to use her anonymity as a sword rather than a shield as she picked fights with people.

The reason there was a feud with Beth Bradley, the SUNY system librarian and state employee who blogged as the “Answer Lady” is that, in attacking me, she said that the kids waiting to catch buses at Clarence schools were an “Aryan Youth Parade“. Seldom had I ever encountered such vicious hatred directed at schoolkids, and Bradley’s online behavior became as combative as it was cowardly.

She recalled her experience of being bullied and laughingly referred to being Bedenkoed. But it got serious for her. She felt her job was being threatened. At one point when her boss asked her about her blogging and expressed disproval. (At the time she worked at a local college.)

Too bad for her. Don’t call little kids nazis. 

Lots of folks have gotten Bedenkoed over the years: Pigeon, Jack Daves, Chris Collis, Crazy Carl. They usually are the enemies of the present Democratic Party leadership.

No, they’re palpably bad actors. Is socialist paragon Joe Schmidbauer going to defend the likes of these people? Paladino? Collins?

And now poor BMHA rep and Fillmore common council candidate Joe Masica is getting Bedenkoed. Masica is the focal point of a bizarre conversation about race in the local mainstream media to the point where Sandy Beach, Buffalo’s local right-wing anti-union anti-liberal attack dog is wrapping himself in a blanket of racial harmony and equality. He denounced Masica when he called his show.  Masica was taped by a former friend, Mr. Christopher, in an off the wall racist commentary on all things political during a private conservation, calling various black politicians racist names.

It’s Mascia. He called black political leaders with whom he works “ni**er” and “tizzun”. I criticized him for that. Fuck me, right?

Mr. Christopher is rumored to have ties with Joel Gambria and cash may have changed hands.

Rumor! This Paul Christopher is getting the Schmidbauering!

Writing in a series of commentaries on the Public site, Bedenko has out done himself. He listed Joe Masica’s financial and moral failures. The only unanswered question is Joe still beating his wife and kicking the family dog? In the list of Joe’s tale of business and moral failures and tax liens is one amazing fact. The honorable DA Frank Sedita, a man not known for his enthusiasm for the enforcement of New York State election laws especially around campaign financially laws prosecuted Joe for failure to file his campaign expenses. Joe pleaded guilty.

Totally a guy worth defending, not to mention electing.

Who would have thought a guy living in Public Housing would have business failures, bad credit and hard times, a fact that describes half the folks living east of Main Street and just about everyone living in the Fillmore District?

Ah, so “living in public housing” – in this case, Marine Drive, which is the public housing for the well-connected rather than for the genuinely poor – patronage housing, if you will – is an excuse for being a deadbeat! Hey, folks, move to Marine Drive and stiff your creditors – it’s ok! Then RUN FOR OFFICE, TOO BECAUSE FISCAL RESPONSIBILITY!

The DA’s failure to enforce New York State Election laws for various political players is note worthy since the Public covered the issue many times. Masica’s prosecution by the DA should be a red flag that the powers that be, wanted Joe Masica gone.  Joe was a pain in the ass at the BMHA, not playing ball with the current administration around issues of police brutality, privatization and generally asking the wrong kind of questions. He is clearly a man with political ambitions whose his hair is presently on fire.

Here’s what one of Mascia’s observers have to say about that:

If Mascia’s mission is so important, perhaps the people interested in these issues might find a better spokesman.

It seems that Zellner and the boys at the Democratic Party HQ as well as Bedenko have judged Masica unfit for political office. (No question he is stupid, and has a street mouth and maybe is a con man) But the real question is who is fit, Dave Franczyk?

Hold the fucking phone just a minute. Mascia calls black politicians the most vicious racist slur available, and “maybe is a con man”, but hey, let’s elect him anyway?! Yes, thank the sweet Lord Jesus that Zellner has deemed Mascia unfit for public office. Anything less would be unacceptable.

The guy doesn’t understand the codified words like his mentor, Carl Paladino, who speaks the same vulgar truths in a more codified style, the mainstream media and the local elites forgive King Carl because he is just being Crazy Carl. Besides he has money and his agenda and theirs are the same.

I don’t think that Paladino’s and Mascia’s vulgarities are “truths”. They’re what Paladino calls “blurts” and they’re, at best, racially insensitive and underscore an unwillingness to work with others. More importantly, they display a mindset that treats some people in our society as something less than human.

But poor Masica, the media feeding frenzy will not let him be forgiven. He apologized and begged for forgiveness. No redemption for Joe. His racist rant foolishly spoke to the vulgar racist truth of the political gangs of Buffalo and Western New York in a private conservation with a “friend” who sold him out.

Mascia is a victim! The Schmidbauering!

Is Joe Masica a bigot? Yes he is and that reflects the unspoken third rail of Western New York, and Buffalo politics, and its culture of political ethnic and racist tribalism. Joe by mouthing-off in a racist street rant has pulled up the rug on Buffalo’s racial and tribal political system.

Yes, it has. But not in a good way.

These political associations (grassroots, go south to name a few), are all fighting for the influence and a piece of the cash pie, be it the non-profit industrial complex or patronage. It is an institutional political corruption and it is racist, oligarchic to the core be it a Pigeon, Zellner, Lord Byron, Bill Max, Sedita and the legion of political hacks waiting for a piece of heaven to fall to them.
It is a system that exists to serve the wealthy of the local elites who control the political process and who are happy to let the rabble fight over the table scraps. Who got that Buffalo billions deal? To quote beloved Beverly Gray (Council-person at Large who died of cancer), “Billions and billions dollars of economic development money has been spent by the government, I look and I don’t see it my community”

Yes. It is. I’ve written about that on countless occasions. So what does this have to do with me?

In no way does this justify Joe’s stupidity. Is he a valid candidate that is for the voters to decide if he has the balls to stay in the fight?

Sure! Maybe he can kick a baby, too! After all, he’s saying really important things about the mismanaged BMHA! Who better to right its financial ship than a deadbeat bankrupt?

Here we get to the meat of the matter:

Bedenko and the mainstream media feeding frenzy about Masica has taken the media focus off Fillmore councilmen Dave Franczyk’s leadership in the Fillmore district for the past 29 years. Franczyk’s district funding policies are geared more toward defending the remaining elements of old Polinia, (Matt Urban Life Center, Adam Mickiewicz Library, St. Stan’s, and the Broadway Market) than any real attempt at advocacy for economic development such as numerous projects being developed by PUSH on the westside.
The past three mayoral administrations have let the people of the district sink under the weight of red lining, divestment, poverty and crime. The primary government redevelopment program is knocking down buildings and creating vacant land for future cattle ranching. The census tracks for zip codes in Fillmore are some of the worst in the nation, for unemployment, incoming inequality, and quality of housing.

To clarify: my crime here is to have written four pieces about Joe Mascia (here, here, here, and here). Schmidbauer actually left a comment. He omits that fact, and my responses.

There was also this:

That was in response to a piece about a Family Court candidate who’s hired a bunch of people under state and federal investigation to help her out. Fuck me, right?

The Schmidbauering excuses racist deadbeat Joe Mascia and condemns a writer who lives in the suburbs and writes a blog under a name that Joe thinks is obnoxious.

Poverty and hopelessness are powerful engines of voter suppression, and the Fillmore district has the lowest voter turnout in the city. Gerrymandering for white voters (First Ward, Allentown) has been the Franczyk strategy for maintaining his continued stay in power.  Advocacy and hope are always threats to the political status quo.

So, get rid of the Polish white guy and replace him with the racist white Italian guy!

Dave Franczyk’s greatest success over the years has been selling himself to the white liberal community (like Bendenko) as a “progressive.” He has supported numerous resolutions on national issues through the common council, issues that have little direct bearing on the lives of people living in Fillmore. He supported Dennis Kucinich and other progressive democrats. These issues have put him in high esteem as a “progressive politician” fighting for social justice as he represents the very system that creates the injustice. He is a living example of the hypocrisy of the liberal left in Buffalo and Western New York. They organize bus tours in the eastside to see the poverty, homeless and despair, looking out at that world seated in privilege, like wealthy Christians standing on the shoulders of the poor to get closer to God.  Real causes of institutional racism are of no interest because they challenge the system of power, and privilege. (I have had numerous conservations with “white progressives” over the years regarding poverty and conditions eastside. They all turn a blind eye to the reality of Dave Franczyk’s role in maintaining the political situation.)

Fucking hell, if you can find a single positive thing I’ve ever written or said about Franczyk, knock yourself out. I don’t follow closely what Franczyk does in the common council, and I’m not swayed by his appeals to liberals. If you don’t like him, get rid of him. Just find a viable, responsible candidate first, you know?

I can summarize in Franczyk’s own words. When confronted by members of the common council on his two track race baiting campaign literature, Franczyk, said, the greatest local Orwellian political statement on record, “I will not be a victim of racial McCarthyism,” just wow!

Is this media frenzy really about Joe Masica’s foul racist words or is it about distracting from foul racist policy?

 

tl;dr: Joe Schmidbauer viscerally hates David Franczyk, so he’s willing to forgive quite literally everything in order to replace Franczyk, no matter who it is. And even though I’ve never taken a side in a Fillmore District Race, it’s largely my fault because Clarence.

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